1. Legal considerations for Australians considering International surrogacy
Surry Hills Office: Upper Ground, 55 Brisbane  Street, Surry Hills, NSW t   
Parramatta Office: Suite 7, 5 Macquarie Street, Parramatta, NSW t 
Crows Nest: by appointment,

2. Surrogacy laws in Australia
Each State and Territory (except the Northern Territory) has its own legislation
All allow for altruistic surrogacy only
NSW, ACT and QLD make it a criminal offence to engage in commercial surrogacy, including internationally
The legislation in all states is fairly uniform, with slight differences in regards to requirements such as age

3. Altruistic vs. COMMERCIAL Surrogacy
Altruistic surrogacy = NO financial benefit for the surrogate.
Payment of expenses (“surrogacy costs”) is permitted
Commercial surrogacy = financial gain for the surrogate

4. International Surrogacy – Do you need an Australian lawyer?
Various considerations to take into account – starting points only:
Is the surrogacy altruistic or commercial?
Whose name(s) will appear on the birth certificate as the parent(s)?
Is there an agreement/contract overseas?
Where do you intend to live as a family?

5. AUSTRALIAN LEGAL ADVICE BEFORE SURROGACY
ALWAYS get advice before committing overseas.
When? Too early may be pointless, but too late may be too late!
Issues to discuss:
What is the nature of the agreement/contract?
What will be the arrangements to place the baby in your care?
Does anything need to be changed in relation to the
agreement/contract and arrangement
Potential ramifications if commercial arrangements
are illegal
How to get your baby back to Australia

6. Case STUDY 1 – United States Commercial Surrogacy
James and Dan have made a lot of enquiries and done their research into commercial surrogacy in the USA. They are a long-term committed couple. They have identified an agency and lawyer in California, USA to use Their lawyer advises them to consult with an Australian lawyer prior to signing off on the agreement

7. Case STUDY 1 – United States Commercial Surrogacy
It isn’t a requirement to consult with an Australian lawyer, except most lawyers (attorneys) want their clients to be fully informed - especially in relation to the illegality of the arrangement (not for Victorian residents).
Definitely advisable to seek advice from a specialist lawyer
What do James and Dan need for their advice?
Be prepared. Our time = their money
Provide a copy of the agreement, and any relevant written advice from their US attorney
Check whether they require written advice from us

8. Case STUDY 1 – United States Commercial Surrogacy
Often no need for ongoing advice especially when it is US surrogacy. We offer one-off appointments for a fixed fee.
Sometimes (rare) the overseas agency wants clarification of Australian law
If commercial, can you “get around” this to qualify for transfer of Parentage order? NO
Do you need help for citizenship arrangements or can you navigate that yourself?

9. case study 2 – Commercial International Surrogacy
Lucy and Michael travel to Mexico. They find a potential surrogate, Carolina, who is 22 years old through an agency, and they enter into a commercial surrogacy arrangement.
Lucy and Michael do not obtain advice from an Australian lawyer prior to entering contract
Carolina (surrogate) and Michael (genetic father) appear on the birth certificate as Max’s parents.

10. case study 2 – Commercial International Surrogacy
Lucy and Michael:
Failed to include clauses about Carolina, and potentially her husband, signing documents to assist with legal requirements in Australia.
Are not entitled to a transfer of parentage order - commercial arrangement.
Do nothing? On a practical basis, Michael will be able to fill in formal paperwork. By the time Max is at school, it is unlikely the school will ever take any issue that Lucy is his mum.

11. case study 2 – Commercial International Surrogacy
But, the “what ifs”.
What if Max becomes seriously ill and Michael and Lucy disagree on treatment?
What if Michael and Lucy separate?
What about when Max needs a new passport in 5 years?

12. case study 2 – Commercial International Surrogacy
Lucy and Michael seek our advice after returning to Australia.
We would advise in relation to risks versus benefits, noting it is a personal decision.
Could we advise both Lucy and Michael? Yes, but we would be unable to act for either of them if they separate. We would be very clear about the difference of position for Lucy and Michael.

13. case study 2 – Commercial International Surrogacy
Should they Seek orders from the Family Court for equal shared parental responsibility? Not essential, but it is an option. Would need to consider:
Will Carolina get advice (remotely) and sign off on the orders? (Lucy and Michael to pay)
Will the Court grant the orders?
Would the Court take any steps in relation to illegality?

14. CASE STUDY 3 – Altruistic Surrogacy Overseas
Paul and Peter, from rural Victoria, have found an altruistic surrogate. She is Michelle, Paul’s cousin.
The baby will be born in New Zealand, through traditional surrogacy. The baby is conceived through home insemination at their home in Victoria, and Peter is the biological father.
Michelle is:
35 years old
A single mother of 2
Lives in, and is a citizen of, New Zealand
CASE STUDY 3 – Altruistic Surrogacy Overseas

15. CASE STUDY 3 – Altruistic Surrogacy Overseas
Do Paul and Peter qualify for a transfer of parentage order (substituted parentage order)?
They meet requirements of Status of the Children Act 1974 for a Substituted Parentage Order:
Procedure occurred in Victoria.
Michelle is not receiving payment – the agreement is altruistic.
Michelle is at least 25 years old.
Michelle has previously given birth.
Paul and Peter are at least 18 years old.
Paul and Peter are residents in Victoria.

16. CASE STUDY 3 – Altruistic Surrogacy Overseas
Other requirements to comply with the Status of the Children Act 1974:
Zane is living with Paul and Peter
Both intended parents and Michelle must obtain the right type of counselling, and legal advice at the appropriate times.
The Court must be satisfied that transfer of parentage order is in Zane’s best interests.
The aim is a parentage order in favour of Paul and Peter. BUT the process has to be managed properly to comply with the legislation - legal advice is required.